792 N.W.2d 911
N.D.2010Background
- Pizza Corner, Inc. sued C.F.L. Transport seeking damages for frozen pizzas allegedly damaged during shipment from North Dakota to Alaska.
- Pizzas were loaded at 11 p.m. with an initial refrigeration of 4 degrees F, after a prior reading of 39 degrees F.
- The truck arrived in Tacoma; the refrigeration unit was turned off when the dock door opened, delaying unloading for 45 minutes.
- A bill of lading with a handwritten temperature notation of +41.0 was created and shipped with the pizzas to Anchorage.
- Pizzas arrived in Anchorage and were rejected as gelled; the bill of lading notation was used to support damages claimed by Pizza Corner.
- The district court admitted the entire bill of lading under N.D.R.Ev. 803(6) as a business record; trial proceeded to bench ruling awarding damages plus interest and costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the handwritten notation on the bill of lading is admissible as a business-record under Rule 803(6) | Pizza Corner argues the notation is admissible as a business record. | C.F.L. contends the notation is hearsay and not supported by a custodian or qualified witness. | Admissible as a business record; foundation satisfied via adoption/reliance by Pizza Corner. |
| Whether a witness from a third party can provide foundation for a record relied on by another | Zubrod can supply the foundation as a qualified witness. | Zubrod is not a custodian; cannot foundation the entire record solely on his testimony. | Yes; a third-party witness can foundation the record if the custodian relied on it and other requirements are met. |
| Whether the handwriting notation can be admitted after a different copy was admitted | The notation was properly admitted; waiver issue not reached. | Waiver by introducing another copy should bar admission of the handwritten notation. | Issue not reached; court proceeds on admissibility of the handwritten notation. |
Key Cases Cited
- State v. Grant, 2009 ND 210 (ND 2009) (abuse-of-discretion review of evidentiary rulings)
- Davis v. Kiliu, 2006 ND 32 (ND 2006) (standards for evaluating district court evidentiary decisions)
- Farmers Union Oil Co. of Dickinson v. Wood, 301 N.W.2d 129 (ND 1980) (business-record exception under Rule 803(6))
- Brawner v. Allstate Indem. Co., 591 F.3d 984 (8th Cir. 2010) (non-custodian witness can foundation business records)
- United States v. Lauersen, 348 F.3d 329 (2nd Cir. 2003) (broad interpretation of qualified witness in Rule 803(6))